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The
following is a draft of the article that appeared in the
Hamilton Spectator in December, 2003. The final published
version was not made available on the Spectator website.
HAMILTON'S
PROPOSED RED HILL VALLEY EXPRESSWAY PROJECT VIOLATES IMPORTANT
1701 CROWN - IROQUOIS TREATY RIGHTS
by
Andrew Orkin and Murray Klippenstein
We
have recently again seen the sad spectacle of use of force
by the state to try to vanquish a small native assertion
of Aboriginal and Treaty rights, this time in the wild,
game-rich jewel that is the Red Hill Valley in Hamilton.
However, there’s still a centuries-old huge red granite
boulder buried in the path of the City of Hamilton’s
proposed Red Hill Valley expressway. We believe it’ll
take more than bulldozers, dynamite, a new mayor, or the
Hamilton police to get it out of the way.
Fast rewind 300 years or so to Albany, New York and Montréal,
Québec in 1701. The French and British were both
trying to make North America theirs, and a key strategic
balance lay in alliances with the militarily and strategically
powerful Iroquois and other native nations of the Great
Lakes region. In what numerous scholars have termed a stroke
of diplomatic genius, the five Iroquois nations succeeded
in simultaneously entering into treaties of peace, friendship
and protection with both of these European powers.
For our purposes here in Hamilton in 2003, the Albany Treaty
of 1701 is the more significant one. In return for the peace
and friendship of the Iroquois, the five Iroquois Nations
extracted fundamentally important promises of protection
and security from the Imperial Crown, particularly with
respect to their territory around Lakes Erie, Huron and
Ontario (and including the present city of Hamilton). These
promises are clearly treaty rights as envisaged in our 1982
Constitution Act, and
are still binding on our governments including the new City
Council of the New City of Hamilton.
A 1990 Ontario court ruling in the Ireland case confirms
the validity and force of the Albany Treaty of 1701 between
“Master the King of England called by us Corachkoo
and by the Christians William the third and to his heires
and successors Kings and Queens of England” and
the “five nations of Indians called the Maquase,
Oneydes, Onnondages, Cayouges and Sinnekes” concerning
“that vast Tract of land or Colony called Canagariarchio
beginning ... conteining in length about eight hundred miles
and in breath four hundred miles including the Country where
Beavers and all sorts of wild game keeps and the place called
Tjeughsaghrondie alias Fort de tret” [now the greater
Hamilton area].
As stated by the Court, “There then follows the words
which are critical in this case: “... provided and
it is hereby expected that wee are to have free hunting
for us and the heires and descendants from us the Five nations
for ever and that free of all disturbances expecting to
be protected therein by the Crown of England ...”
This sentence in old English, clearly declares that the
Iroquois people, and their heirs and descendants are to
have free hunting, free of all disturbances, protected by
the Crown of England, forever, in defined territory –
which includes the Red Hill Valley.
Early in the 1980’s, one of us found himself by coincidence
in the company of a large group of Canadian “Indian”
Chiefs on a flight to London, England. They were headed
for the Court of St. James to try to prevent the assignment
and transfer, in the context of the impending
patriation of the Constitution of Canada, of their treaty
relationship with the Crown from the Imperial Crown to the
“Crown in Right of Canada”.
Like
Nelson Mandela’s forebears who tried in vain to ensure
that their human rights be protected as the Union of South
Africa was being constituted at Westminster in 1910, they
were less than successful: the Law Lords of the U.K. Court
of Appeal ruled on January 28, 1982 that the Crown was now
separate and divisible, and that the Crown’s solemn
treaty obligations to the Indians now lay with the “Crown
in Right of Canada”. Once again, the Mother of all
democracies tossed the thorny question of its post-colonial
obligations concerning the rights of the natives into the
hands of the white settler government.
All was not bleak, however, in 1982 or since. In the 1982
ruling of the U.K. Court, the illustrious Lord Denning stated
that the promises contained in treaties with the Indians
must be upheld by the Crown: “No Parliament should
do anything to lessen the worth of these guarantees. They
should be honoured by the Crown in respect of Canada as
long as the sun rises and the river flows. That promise
must never be broken.”
First Nations leaders did succeed in forcing Canadian Governments
to emplace in the new Constitution Act of 1982, a “Part
II” concerning the collective rights of Aboriginal
Peoples (alongside, but importantly separate from Part I,
the Charter of Rights and Freedoms concerning the individual
rights and freedoms belonging to the rest of us). Part II,
Section 35, of the 1982 Act, the highest law of the land,
declares that “the existing aboriginal and
treaty rights of the aboriginal peoples of Canada are hereby
recognized and affirmed”.
Plain and simple, since 1982 the Crown’s treaty promises
to the Indians, and their pre-existing Aboriginal rights,
have been re-affirmed as being among the highest constitutional
obligations of the governments of the land, and no longer
subject to the unilateral actions of Crown breach and extinguishment
that had been the practice of earlier, less respectful eras.
(These rights have been affirmed many times before in the
highest law of the land, for example in the Royal Proclamation
of 1763.)
This affirmation has since repeatedly been confirmed by
the Supreme Court of Canada and numerous other authorities
to mean what it says, namely that the treaties with Native
nations in Canada are “sacred promises”; they
are obligations in which “the honour of the Crown is
at stake”; they are to a certain extent legally paramount
over provincial legislation, even statutes of general application;
they must be interpreted purposively, broadly, liberally,
and in a manner that is generally consistent with the native
signatories’ understandings; and any infringement of
these promises must meet very high levels of justification.
Accordingly, notwithstanding the passage of two centuries,
the nine (non-native) justices of our Supreme Court recently
upheld the 1700’s treaties of peace and friendship
with the Mi’kmaq up to the light. They agreed with
Mi’kmaq fisherman Donald Marshall Jr.’s assertion
that the Mi’kmaq nations had kept their side of the
treaty deal for 200 years (they never did side with the
American rebels), and accordingly that the treaty promises
made to them in the 1700’s still bind the Crown going
into the 2000’s – to the effect that that Marshall
and his people still have a priority treaty right to fish,
sell their catch, and be free from molestation by Her Majesty’s
troops.
Can we take comfort here in Hamilton that the Iroquois have
perhaps abandoned their 1701 treaty rights – also involving
peace, friendship, protection and non-disturbance –
in and to the Red Hill Valley? No, says the Ontario court
in Ireland: “A treaty is a solemn, sacred agreement
between the Crown and the Indians and there are sovereign
elements to it. This being the case, much more is required
than mere non-use to show abandonment – even if the
non-use is for 150 years.”
Yes, “we” have simply occupied and stolen much
of the rest of the 1701 territory identified in the treaty
and on the treaty map. However, surely this makes the rights
of the Iroquois people and their “heires and descendants”
to be “free of all disturbances” in the modest
remaining Red Hill Valley corner of their original 1701
hunting territory so very much more important. It is a corner
that is clearly still very amenable to the exercise of these
economically, culturally and spiritually fundamentally important
hunting and other treaty rights.
But
have the Iroquois’ rights in the Red Hill Valley not
been unilaterally extinguished by Crown occupation of much
of the rest of the 1701 Beaver Hunting Ground or our use
of the valley itself? Again, in Ireland: “I
think it can now be said that a treaty and the rights created
under it cannot be unilaterally extinguished. It requires
consent.” The Sacred Fire burning in the Valley (until
it was recently removed at the behest of the police) showed
clearly we don’t have it.
Contrary
to the pronouncements of the new Mayor immediately after
the election, fundamental rights and liberties are not a
question of majority rule popularity contests. The Mayor
needs to be reminded that Constitutions exist precisely
to protect fundamental rights, especially the rights of
vulnerable peoples (such as the Iroquois) or minorities,
and precisely when they are unpopular to overall populations
and mobs, city councils, or police forces. If just one
person wishes to assert, say, her constitutional freedom
of expression or her treaty right to hunt in an otherwise
“unpopular” but legally-protected manner, all
of our rights are diminished if we tolerate her being silenced
or removed, or her rights being extinguished.
Treaty rights are nation-to-nation rights and obligations,
including according to our own Supreme Court. Our Canadian
nation may no longer find these rights and obligations convenient,
such as when we want to expand “our” Oka golf-courses,
“our” Ipperwash provincial campgrounds, or “our”
Hamilton
expressway networks – and especially when the Indians’
reserves or their hunting and sacred burial grounds are
the only “vacant” lands in which we can do so
without having to expropriate non-native voters’ properties
for the purpose.
Significantly, governments and councils at Oka, Ipperwash
and Burnt Church all declared they had the law on their
side. They did not. They also stated that the Indians were
illegals, and used injunctions and even force and to try
to obscure, roll over and ultimately deny the aboriginal
and treaty rights issues involved. They were unsuccessful.
The land and fisheries concerned are still in native hands,
despite hundreds of wrongful arrests and even some fatalities.
As declared by the court in Ireland concerning the
1701 Albany Treaty, it would be “unreasonable for the
Crown to argue that its legal title and its right to use,
develop and enjoy the lands can frustrate, and in effect
abolish, the hunting rights of the Indians.” And once
again, as stated by Lord Denning, that promise “should
be honoured by the Crown in respect of Canada as long as
the sun rises and the river flows” and “must
never be broken.”
What
on earth makes us think, in light of these various court
judgments, that what was recently done in our name to the
Iroquois’ Sacred Fire in the Red Hill Valley is O.K.?
We clearly do not have the necessary permission, freely
given and obtained in a manner required by our own laws
and theirs, from the “heires and descendants”
of the Iroquois signatories to the 1701 Treaty to abolish
their treaty rights in the Red Hill Valley by building an
expressway there. If the City of Hamilton insists on proceeding
without it, and on extracting it under the clear duress
of bulldozers, chainsaws and police raids, it will be doing
so unwisely, arrogantly, and only to our very great shame.
Andrew
Orkin and Murray Klippenstein practise aboriginal, environmental
and human rights law in Hamilton and Toronto respectively.
They are representing an Iroquois citizen in a recently-launched
legal action to prevent construction of the Red Hill Valley
Expressway on Iroquois Treaty territory in Hamilton.
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